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Free to Work, Free to Marry

AP Photo/Jim Mone

Thousands filled the Minnesota State Capitol as they waited for word that the Senate had passed the gay marriage bill yesterday.

Last month, Rhode Island came over into the marriage equality column. Last week, it was Delaware. Yesterday, it was Minnesota. There’s progress expected in New Jersey, Illinois, and at the Supreme Court. Pick your favorite cliché or metaphor about winning—being on a hot streak, passing the tipping point, bending the arc of history—and feel free to apply.

And yet few Americans are aware that in 29 states, you can still be fired for putting a same-sex partner’s picture on your desk, or rejected for a job because the hiring manager doesn’t like homos. That’s right—it’s perfectly legal in most of the country to fire, refuse to hire, demote, or otherwise discriminate against someone for being gay.

The Employment Non-Discrimination Act (ENDA), which would make it illegal to fire people on the basis of sexual orientation or gender identity, has been introduced in every session of Congress since 1994. Even before that, New York state representatives Bella Abzug and Ed Koch (who would go on to become the mayor of New York City) introduced a version of ENDA in 1974, then called the Equality Act. In 1996, under Bill Clinton, ENDA failed by just a single vote—the very same day that the House passed the Defense of Marriage Act, which defined marriage for federal purposes as being between one man and one woman, and which is currently up for evaluation at the Supreme Court. The congressional debate about “defending” marriage was hateful, replete with references to discredited “scientific” studies about how many hundreds of sex partners an average gay man had and statements about AIDS being God’s punishment for immorality or about gay marriage leading to legal marriage to your German shepherd (some of us, at the time, wondered what was up with these legislators and their German shepherds). ENDA was tossed in as a way to prove that all that hate wasn’t really hate, just reverence for the institution of marriage.

This hoary old bill was once again put on Congress’s floor at the end of April, buried during a busy news week. Not that anyone would have paid attention even if it had been slow. Perpetual loser bill reintroduced once again—there’s a memorable headline. The difference is that the LGBT advocacy community is nearly united in agreeing that passing ENDA is this year’s overriding goal.

Had ENDA passed in 1996—well, that’s a counterfactual that boggles the mind. There's a reason that we’ve won civil unions or marriage only in states that have first passed statewide nondiscrimination laws. We only win relationship recognition when people know gay people. But too many people are afraid to come out on the job if they might lose that job for being gay. That’s a double whammy: Not only do you have to lie, implicitly, at work, leaving your daily life fraught with anxiety and your income a bit at risk; you also lose your ability to wear down others’ anti-gay prejudice. People change their minds about whether we deserve recognition for our relationships only when they realize that they like us and our partners. Once they realize that the gays they ostensibly hate include Mary Beth in accounting and Jamal in HR, that hatred starts to soften. And once Mary Beth and Jamal know they can keep feeding their families once they’re out, they are more likely to feel comfortable introducing you to their partners at the grocery store or at church, and explaining how much a statewide DOMA would hurt their kids. Had nationwide job protections been in place since 1996, it’s possible to imagine we’d be even farther along with marriage in still more states, as more people realized they cared about their gay colleagues.

If ENDA is so important, why has marriage gotten so far while protection on the job has stalled? Many advocates find this quite paradoxical. Except for a few sensitive jobs—teaching, for instance, or military service—the freedom to work while gay has been relatively uncontroversial since the 1980s. Even anti-gay Americans have long believed that if you do a good job, what you do in your personal life shouldn’t matter. As of the last poll, three-fourths of the country says that LGBT folks should be protected from discrimination on the job.

Here's the truth: Marriage hasn’t gotten as far as it seems. All our wins have been statewide—just like our wins on anti-discrimination laws. The national organizing efforts on marriage and the military have been efforts to undo something bad. ”Don’t ask, don’t tell” (DADT) banned us from open service in the military, the nation’s biggest employer. DOMA bans the federal government from recognizing marriages we’ve made in the states. If SCOTUS knocks down DOMA Section 3, that won’t be the same as federal support for same-sex marriage; it just returns the federal government to neutral, which is precisely where the feds are right now on employment: indifferent.

ENDA, on the other hand, would be a bigger deal than eliminating DADT or DOMA §3. Passing ENDA would be—at last—a positive win at the federal level at last: active protection from our federal government, for the first time on record.

And passing ENDA will mean most to the least powerful among us. Urban, professional-class employees—lawyers, journalists, software engineers, the folks who have been especially vocal and most active donors on LGBT rights—usually feel free, these days, to be out as lesbian or gay on the job. That’s less true for a rural worker in a blue- or pink-collar job whose ability to put a picture of a same-sex partner on her desk or in his locker without being harassed, demoted, or fired is going to depend on the whims of coworkers and managers. If you're either just urban or just professional—not both—you too may be at the mercy of your coworkers and managers. ENDA will mean a lot to the community college professor in rural Arkansas, or big-box retail clerk in, say, Columbus, Ohio who will finally feel free to stop playing pronoun shuffleboard (“Yes, I did go out with someone recently, but they weren’t very interesting … ”).

But of course there's still another reason that marriage activism feels as if it has so much oomph behind it while nondiscrimination law seems so dutiful and dry: The symbolism behind marriage speaks to the defining feature of gay identity (same-sex love) in a way that workplace discrimination does not. By contrast, for blacks and for women getting a law guaranteeing the right to work was central to achieving dignity. Until the Civil Rights Act of 1964, they were flatly denied equality on the job; their discrimination centered around the idea of them as people who couldn’t think or do well enough to stand side by side with white men.

The key difference is that while it’s difficult to hide either your sex or your race, it’s comparatively easy for most lesbians, bisexuals, and gay men to hide our sexual orientation. Gay men have been able to get jobs and lesbians have moved ahead on the job in stride with women at large—albeit at the cost of revealing that that they had full emotional lives. In other words, on the job LGB folks have been there all along; we just haven’t always been able to be open about it. For us, the far more central denial of our dignity has been our exclusion from the social symbolism and law that have shaped our siblings’ romantic and family aspirations. Being denied recognition for our passions and our families has been at the heart—a metaphor I use intentionally—of our civil and social exclusion, and therefore our movement. Employment rights have been emotionally secondary to the LGB movement (although far more important in the T column, where people lose their jobs regularly for transitioning) in the way that the right to marry across races was secondary to the African American civil-rights movement. Being denied that freedom to marry across races lines was an insult, but not the central plank of oppression. But being treated as if none of my loves deserved recognition was absolutely at the core of my exclusion, at least as a lesbian, from full participation in my community.

The inability to care for the ones you love in extremis—when they need you most, in hospital rooms and funeral arrangements and childrearing—is a terrifying and helpless feeling. But that can’t be fixed, of course, if folks can’t feel safe coming out at work. That’s where ENDA will help: It will be a critical step toward allowing folks to advocate, locally, for themselves and their families.

Where ENDA will have the chance to make the biggest change is on gender presentation and identity. I believe the LGBT coalition is winning on sexual orientation. The resistance to our freedom to marry is crumbling as more and more people say: Who cares who you love, as long as she wipes her feet before she comes in the house? But as I write here regularly, this country remains more than a little nutty about gender. Boys are supposed to be boys, not girls, and vice versa. Here I’m talking in part about transgender identities—whether it’s acceptable for someone born female to live as male or vice versa, and if so, where to go to the bathroom. But I also mean that it’s still not okay for a boy to deviate from the strictest version of masculinity. A harsh patrol descends if a boy or man dares to express an interest in something fluffy or sparkly, walks with insufficient swagger, fails to cheer raucously enough for a sports team, or otherwise expresses strays from the preapproved masculinity box. Like a ball that wavers out of the strike zone, the rules vary from one observer to another, but many people are happy to call out any offense against a man’s manhood when they see it. Passing ENDA might help insist that, culturally, we can show up to work as who we are—even if who we are doesn’t fit someone else’s vision of manhood or womanhood.

Tico Almeida, the president of Freedom to Work, told me recently that he disagrees with that little theory of mine. He believes, rather, that ENDA is needed especially to protect workers on sexual-orientation grounds. There’s a growing body of case law, he said, that says that gender deviation is protected under Title VII of the Civil Rights Act, which says that our freedom of employment will not be abridged based on sex. Courts, he says, have been expanding on the Hopkins v. Price Waterhouse precedent—which slapped the accounting firm for refusing to make Ann Hopkins partner because she wasn’t feminine enough—to say that any deviant gender expression is protected on the job. If a manager repeatedly catcalls someone as a “sissy” or “girlyboy,” he’ll have a sex-harassment case. (Not sexual harassment, sex harassment, a slightly different creature.) Not so if you fire him flat-out for being a faggot.

Whether I'm right or Almeida is, we end up in the same place: It’s time to pass ENDA already.

Almeida believes this might be the year ENDA makes real progress. In May or June, he expects the bill to pass easily out of the Senate Health Education Labor & Pensions Committee, chaired by Iowa’s Tom Harkins. If Senate Majority Leader Harry Reid allows the bill to come to the floor—a big if, in Almeida’s mind; he carefully says Reid has been “timid” on moving ENDA forward—then Almeida expects the bill to cross the 60 barrier and pass over to the House, where it already has 169 cosponsors, including a number of Republicans. There, he hopes to get one of the House ENDA cosponsors to file a “discharge petition” to insist that it be brought up for a vote; if 218 sign on, the bill skips committee entirely and goes to the floor. That, Almeida explains, gives LGBT forces the opportunity to launch an organizing drive to get House members to sign the petition. Right now, as we pass over this particular tipping point—or bent moral arc, or whatever it might be—LGBT issues have become a wedge to use against Republicans, instead of—as has historically been the case—against Dems. Almeida believes that once SCOTUS knocks down DOMA, all those Republicans who are going to continue to fulminate against marriage equality will then be able to use support for ENDA as their fig leaves: See, I’m not anti-gay, I just don’t believe we should “redefine marriage”—the strategy behind introducing ENDA on the same day as DOMA in the first place.

If they do—if the bill passes—it will make thousands of people’s jobs a little bit safer. It will make it easier for them to advocate on behalf of their families. So I hope that he’s right. After 20 years, it’s about time.

Regardless of if the bill has the votes to break a filibuster and pass in the Senate, it should be brought to the floor. Obama has demurred on an executive action barring any government contractor from discriminating based on sexual orientation or gender identity/expression for almost 4.5 years now. It was a campaign pledge he made to our community that he has yet to follow through on. His rationale that it should come from the legislature will be blown to pieces when it fails either by filibuster in the Senate or inaction in the house. This will demonstrate that there is no chance of this passing both chambers and an executive order is the ONLY option in this dysfunctional congress that can spend hours on "scandals" but no time on unemployment, wage stagnation, or basic fairness.

There is on thing that disturbs me about the argument the gay community and its supporters puts forth about marriage equality, and it stems from the very definition of a license. A license is a legal distinction, the antithesis of an equivalent. It is deliberately designed to create two unequal groups: those who have it, gay or straight, above those who do not. There would be no point in granting a license if the intent was not to make such a distinction. Furthermore, we grant benefits to those with a license that we deny those without it. Whereas I have never supported the argument that granting a marriage to license would somehow destroy the sanctity of marriage or that a person's sexual orientation should ever be a factor in any legal benefits he receives, why should we be comfortable with the fact that marital status is a criteria for social acceptance or receipt of any tangible benefits? In some cases, the argument for a license makes sense. For instance, we issue a driver's license in an attempt to ensure that a person who operates a motor vehicle has the mental and physical ability to do so. Likewise, in the professions, we issue a professional license as a symbol of a person's skill. It is in the interest of the general public to know, for instance, that a medical professional has undergone extensive, supervised training that can only be acquired in an academic setting. In both these instances, the license makes a judgment of something relevant a person has acquired. What is it that two people should ever have to validate in order to have a life together? A license doesn't make people equal as much as it places those who have it into a preferred group. Wouldn't the better argument be that a license should be irrelevant to any legal benefits a person receives? We argue that sexual orientation should be irrelevant, can't we make the same argument about marriage?

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